5.1.9 Agreement to Accommodate a Child

SCOPE OF THIS CHAPTER

This chapter focuses on key issues with regard to Accommodating a child under Section 20 (Children Act 1989), frequently referred to ‘voluntary accommodation’. Recent court judgments have expressed concern about how parental agreement is obtained and the delay that has occurred in planning permanency arrangements for children.

Contents

1. Section 20 Accommodation

There are many scenarios in which Section 20 Children Act 1989 is used positively and these include situations of family support and where parents are unable to care for children, for whatever reason and there are no agreed alternative family or friends to assist.

In accommodating a child under Section 20, it must always be borne in mind that the Local Authority does not have Parental Responsibility; only the parents / those carers with Parental Responsibility can make decisions for the child. The parent/carer can remove the child from Accommodation at any time (Section 20 (8)) and any such request must be responded to promptly by the Local Authority, or it must otherwise take action through the court.

The parents/carers should be advised of any changes in the child’s circumstances whilst the child is in Local Authority care.

It is therefore important to ensure that the parents/carers have full information about their continuing responsibilities as well as those of the Local Authority and that this is enshrined in the Care Plan.

Agreement to accommodate a child under Section 20 must always be authorised by the Head of Service.

2. Obtaining Parental Consent to Look After a Child

Obtaining Parental Consent is a crucial part of accommodating a child. A number of court decisions have been particularly critical of local authorities’ actions with regard to consent and great care needs to be undertaken to ensure parents have the appropriate capacity to do this.

Section 20 Children Act 1989 agreements are not valid unless the parent giving consent has capacity to do so. Commonly, more than one person holds parental responsibility for a child and the consent of all those with parental responsibility must be court. The consent needs to be properly informed and fairly obtained. Willingness to consent cannot be inferred from silence, submission or acquiescence - it is a positive action.

Detailed guidance on the obtaining of parental consent was given by the High Court in the case of Re CA (A Baby) (2012):

The social worker must first be satisfied that the parent giving consent does not lack the mental capacity to do so. Under the Mental Capacity Act 2005, a person is unable to make a decision if s/he is unable:

To understand the information relevant to the decision;

To retain that information;

To use or weigh that information as part of the process of making the decision; or

To communicate his / her decision.

If there is doubt about capacity, no further attempts to obtain consent should be made at that time and immediate advice should be sought from a manager;

If satisfied that the parent has capacity, the social worker must be satisfied that the consent is fully informed:

Does the parent fully understand the consequences of giving such a consent?

Does the parent fully appreciate the range of choice available and the consequences of refusal as well as giving consent?

Is the parent in possession of all the facts and issues material to the giving of consent?

If not satisfied that the consent is fully informed, no further attempt should be made to obtain consent on that occasion and advice should be sought from a manager and legal advice sought if thought necessary;

If satisfied that the consent is fully informed, then it is necessary to be satisfied that the giving of such consent and the subsequent removal of the child from the parent is both fair and proportionate:

What is the current physical and psychological state of the parent?

If they have a solicitor, have they been encouraged to seek legal advice and/or advice from family or friends?

Is it necessary for the safety of the child for her to be removed at this time?

Would it be fairer in this case for this matter to be the subject of a court order rather than an agreement?

Whether a person has capacity can sometimes be difficult to determine, as some individuals have a learning disability or mental health problem but can present as being more ‘able’ than in fact they are. Equally, within the context of ‘assessing capacity’, social workers should approach with great care relying on Section 20 agreements from mothers after giving birth, (especially where there is no immediate danger to the child and where probably no order would be made).

Where there is any concern about a parent / carer’s capacity, the social worker should ensure they discuss this issue with their team manager, or that the parent has information from a legal adviser or professional advice. (1) Note: In Coventry City Council v C, B, CA and CH (2012) EWHC2190 (Fam) it was identified that, ‘’every social worker obtaining consent is under a personal duty (the outcome of which may not be dictated to by others) to be satisfied that the person giving consent does not lack the capacity to do so.’’

(1) Note: Unless a parent is subject to Proceedings, or Letter Before Proceedings, they will be unable to qualify for Legal Aid.

3. Recording Parental Consent

In Re N (Children) (Adoption: Jurisdiction) [2015] EWCA Civ 1112 good practice, the President of the Family Division, Sir James Munby sets out his view in respect of good practice in the recording of parental consent to a Section 20 agreement:

Wherever possible the agreement of a parent to the accommodation of their child under Section 20 should be properly recorded in writing and evidenced by the parent's signature;

The written document should be clear and precise as to it terms, drafted in simple and straight-forward language that the particular parent can readily understand;

The written document should spell out, following the language of the Children Act 1989 Section 20(8), that the parent can 'remove the child' from the LA accommodation 'at any time';

The written document should not seek to impose any restraint or dilution on the exercise of the parent's right under Section 20(8). Where the parent is not fluent in English, the written document should be translated into the parent's own language and the parent should sign the foreign language text, adding, in the parent's language, words to effect that 'I have read this document and I agree to its terms'.

The Parental Consent document can be found on ICS.

4. The Use of Section 20 prior to Court Proceedings

Section 20 may, in an appropriate case, have a proper role to play as a short-term measure pending the commencement of care proceedings, but the Courts have strongly advised that this should not lead to an unnecessary delay in the issuing of proceedings and cases must not be allowed to drift, (including those cases when children are placed with relatives under a Section 20 agreement). Proceedings still need to be issued in a timely fashion.

Even where a parent/carer’s legal adviser has established an agreement regarding the use of Section 20 prior to either issuing Proceedings or progressing a timely plan and timetable of work for further assessment, these should be carefully adhered to by all parties. Any plan should be based on the child’s welfare needs and avoid delay.

Process following a Section 20 agreement to accommodate a child

The social worker should meet with the parents within 24 hours or the next working day following the placement of the child. (Unless the accommodation was planned). The purpose of this meeting is to update the parents in relation to how their child is, to revisit the issues which led to the Section 20 accommodation, to review the child’s need for accommodation under Section 20, discuss any contact issues & to explore if there any alternative carer options.

This meeting must be carefully recorded by the social worker

A Legal Planning Meeting must be scheduled within 2 working days of a child’s unplanned accommodation under Section 20;

For a new born baby, care proceedings will be issued within 5 working days.

Where a baby is being removed from parent/s at birth for the baby’s immediate protection, care proceedings should be issued within five days, unless there are exceptional circumstances not to do so. (Nottingham City Council v (1) LM (2) DW (3) LW (By her Children’s Guardian) (2016 EWHC 11).